(By Request of the State Auditor)
[Introduced March 6, 2013; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact §36-9-3 and §36-9-23 of the Code of
West Virginia, 1931, as amended, all relating to clarifying
that time-sharing plans, accommodations and facilities are
subject to regulation by the Division of Land Sales and
Condominiums; and granting the Division of Land Sales and
Condominiums the authority to seek additional relief in
circuit courts.Be it enacted by the Legislature of West Virginia:
That §36-9-3 and §36-9-23 of the Code of West Virginia, 1931,
as amended, be amended and reenacted to read as follows:ARTICLE 9. WEST VIRGINIA REAL ESTATE TIME-SHARING ACT.§36-9-3. Scope. (a) This article applies only to time-sharing plans consisting
of more than seven time-sharing periods other than condominium fee
ownership time-sharing plans, except that sections six, ten, eleven, twelve, thirteen, seventeen, twenty, twenty-one, twenty-
three, twenty-four, twenty-five and twenty-six of this article
shall apply to all time-sharing plans.
(b) All time-sharing accommodations or facilities which are
located outside the state but offered for sale in this state shall
be subject to all of the provisions of this article except sections
eleven through sixteen and twenty through twenty-threetwenty-two.
(c) Notwithstanding other provisions of this article, either
expressed or implied, to the contrary, it is the legislative intent
that nothing herein be deemed to alter the existing procedure for
the assessment and collection of ad valorem taxes on accommodations
or facilities subject to a time-sharing plan.§36-9-23. Regulation by division. The division of land sales and condominiums is hereby created
in the office of the State Auditor to administer the provisions of
this article. The division has the power and authority to enforce
and ensure compliance with the provisions of this article. In
performing its duties, the division shall have the following powers
and duties:
(a) To aid in the enforcement of this chapter, the division
may make necessary public or private investigations within or
outside this state to determine whether any person has violated or
is about to violate this article;
(b) The division may require or permit any person to file a written statement under oath or otherwise, as the division
determines, as to the facts and circumstances concerning a matter
under investigation;
(c) For the purpose of any investigation under this chapter,
the director of the division or any officer or employee designated
by the director may administer oaths or affirmations, subpoena
witnesses and compel their attendance, take evidence, and require
the production of any matter which is relevant to the
investigation, including the identity, existence, description,
nature, custody, condition and location of any books, documents or
other tangible things and the identity and location of persons
having knowledge of relevant facts or any other matter reasonably
calculated to lead to the discovery of material evidence. Upon
failure to obey a subpoena or to answer questions propounded by the
investigating officer and upon reasonable notice to all persons
affected thereby, the division may apply to the circuit court for
an order compelling compliance;
(d) The division may prepare and disseminate a prospectus and
other information to assist prospective purchasers, sellers and
managing entities of time-sharing plans in assessing the rights,
privileges and duties pertaining thereto; and
(e) Notwithstanding any remedies available to purchasers, if
the division has reasonable cause to believe that a violation of
this chapter has occurred, the division may institute enforcement proceedings in its own name against any developer, exchange
program, seller, managing entity, association or other person as
follows:
(1) The division may permit any person whose conduct or
actions may be under investigation to waive formal proceedings and
enter into a consent proceeding whereby an order, rule or letter of
censure or warning, whether formal or informal, may be entered
against that person;
(2) The division may issue an order requiring a developer,
exchange program, seller, managing entity, association or other
person, or other assignees or agents, to cease and desist from an
unlawful practice under this article and take such affirmative
action as in the judgment of the division will carry out the
purposes of this article;
(3) The division may bring an action in circuit court for
declaratory or injunctive relief and for other appropriate relief;
(4)(A) The division may impose a civil penalty against any
developer, exchange program, seller, managing entity, association
or other person for a violation of this chapter. A penalty may be
imposed on the basis of each day of continuing violation, but in no
event shall the penalty for any offense exceed $10,000. All
accounts collected shall be deposited with the treasurer to the
credit of the West Virginia real estate time-sharing trust fund;
(B) If a developer, exchange program, seller or other person fails to pay the civil penalty, the division shall thereupon issue
an order directing that such developer, exchange program, seller or
other person cease and desist from further operation until such
time as the civil penalty is paid; or the division may pursue
enforcement of the penalty in a court of competent jurisdiction.
If an association or managing entity fails to pay the civil
penalty, the division shall thereupon pursue enforcement in a court
of competent jurisdiction;
(5) In order to permit the developer, exchange program,
seller, managing entity, association or other person an opportunity
either to appeal such decision administratively or to seek relief
in a court of competent jurisdiction, the order imposing the civil
penalty or the cease and desist order shall not become effective
until twenty days after the date of such order; and
(6) Any action commenced by the division shall be brought in
the county in which the violation occurred.

NOTE: The purpose of this bill is to clarify that time-sharing
plans, accommodations and facilities are subject to regulation by
the Division of Land Sales and Condominiums. The bill grants the
Division of Land Sales and Condominiums the authority to seek
relief, in addition to declaratory or injunctive relief, in circuit
courts.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.